Sl In the. thtprtmt O!nurt. ofrhe. %tt nf (!ttdifnrnia THOMAS SPIELBAUER, COUNTY OF SANTA CLARA, eta!.,

Transcription

1 Sl50402 In the thtprtmt O!nurt ofrhe %tt nf (!ttdifnrnia THOMAS SPIELBAUER, PIa in! iff-appellant, V. COUNTY OF SANTA CLARA, eta!., Defendanls-Respondenls. CALIFORNIA COURT OF APPEAL SIXTH APPELLATE DISTRICT NO. H SUPERIOR COURT OF SANTA CLARA!ION. JAMES KLEINBERG NO. CV BRIEF OF AMICI CURIAE CALIFORNIA LEAGUE OF CITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SCHOOL BOARDS ASSOCIATION AND ITS EDUCATION LEGAL ALLIANCE AND CALIFORNIA PUBLIC EMPLOYERS LABOR RELATIONS ASSOCIATION, SUPPORTING DEFENDANTS AND RESPONDENTS COUNTY OF SANTA CLARA, ct a!. KATHLEEN M. BALES-LANGE (094765) COUNTY COUNSEL RONALD E. REZAC (059908) CHIEF DEPUTY COUNTY COUNSEL DEANNE H. PETERSON (147099) DEPUTY COUNTY COUNSEL V COUNTY OF TULARE 2900 West Burrel, County Civic Center Visalia, Califomia (559) Telephone (559) Facsimile Attorneys.fOr Alllici Curiae It' COUN EL PRESS (SOO) 3-APPEAL PRINTED ()N RECYCI.f-D

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii APPLICATION FOR LEAVE TO FILE BRIEF AMICI CURIAE...! SUMMARY OF ARGUMENT...3 ARGUMENT _... 4 A. A PERMANENT PUBLIC EMPLOYEE MAY BE DISMISSED FOR REFUSAL TO ANSWER QUESTIONS IN CONNECTION WITH AN INVESTIGATION IF HE HAS BEEN GIVEN A GARRITY/LYBARGER ADMONISHMENT, DULY ADVISING HIM OF HIS OPTIONS AND THE CONSEQUENCES OF HIS CHOICES...4 B. TI-lE SPIELBAUER IMMUNITY PROTOCOL IS AN EXTRAORDINARY AND UNWARRANTED DEPARTURE FROM STANDARD WORKPLACE INVESTIGATION PROCEDURES CREATING A SIGNIFICANT FINANCIAL AND ADMINTSTRATIVE BURDEN ON PUBLIC ENTITIES AND A BARRIER TO HIE EMPLOYER SECURING AN ACCOUNTING OF THE EMPLOYEE'S PERFORMANCE OF HIS PUBLIC TRUST,......! 0 1. Spie/bauer is a Barrier to the Employer Securing an Accounting of the Employee's Performance......_ Spielba uer Creates Administrative Burdens On Public Agencies Spiel bauer Creates Financial Burdens On Public Agencies Spiclbauer Creates Additional Adverse Consequences Due To The Enforced Delay In Resolving Employment Mallers.... l3

3 5. Spielbauer Creates an Adverse Impact on Workplace Harassment and Discrimination Proceedings Spielbauer Creates an Adverse Impact on the Resolution of Civil Litigation CONCLUSION CERTIFICATE OF'COMPLIANCE... DECLARATION OF SERVICE II

4 TABLE OF AUTHORITIES CASES Byrne v. State Personnel Bo ard (1960) 179 CaLi\pp.2d Gardener v. Brokerick (1968) 392 u.s :... 6, 8, 9 Garrity v. State of New Jersey (1967) 385 U.S , 5, 6, 7 Hester v. City of Milledgeville (lith Cir. 1985) 777 F.2d In re Jessica B. (1989) 207 CaLApp.3d Knebel v. City of Bil oxi and Civil Service Co mmission (Miss. Sup. Ct. 1984) 453 So.2d I Lefkow itz v. Turley (1973)414 u.s , 6 Lybarger v. City of Los Angeles (1985) 40 Cal.3d , 4, 5, 6 Martinez v. Co unty of Tulare (1987) 190 CaLApp.3d People v. Coleman (1975) 13 Cal.3d People v. Gwillim (1990) 223 Cal.App.3d Ramona R. v. Superior Co urt (1985) 37 Cal.3d Sher v. U.S Department of Veteran's Affairs (I" Cir. 2007) 488 F.Jd Ill

5 Spevack v. Klein (1967)385 U.S , 7,8 Spielbauer v. County of Santa Clara (2007) 146 Cai.App passim Uniformed Sanitation Men Assoc. v. Commiss 'r of Sanitation (1968) 392 U.S , 9 CONSTITUTIONAL PROVISIONS Cal. Const. Art. VII, Sec. I U.S. Constitution, Fifth Amendment , 7, 10, II, 15 COURT RULES California Rule of Court 8.200(c)... 1 STATUTES 42 U.S. C. 2000e et seq l4 Education Code 44932(a) (c)... 4 Government Code et seq , IY

6 APPLICATION FOR LEAVE TO FILE BRIEF AMICI CURIAE Pursuant to California Rule of Court 8.200(c), the undersigned, the League of California Cities ("League"), the California State Association of Counties ("CSAC"), the California School Boards Association (CSBA) and its Education Legal Alliance, and the California Public Employers Labor Relations Association (CaiPELRA) request leave to file the attached brief as amici curiae in S'Upport of defendants and respondents, County of Santa Clara, et. al. CSAC is a non-profit corporation whose membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels' Association of California and overseen by the Association's Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Commiltee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties. The League is an association of 478 California cities united in promoting the general welfare of cities and their citizens. The League is advised by its Legal Advocacy Committee, which is comprised of 24.city attorneys representing a1116 divisions of the League from all parts of the state. The committee monitors appejlate litigation affecting municipalities and identifies cases that are of statewide significance. The committee has identified the above-entitled case as posing an issue of statewide significance. The California School Boards Association (CSBA) is a California non-profit corporation. CSBA is a member-driven association composed of nearly 1,000 K-12 school district governing boards and county boards of education throughout California. CSBA supports local school board governance and advocates on behalf of school districts and county offices of education. Elected school board members are the employers of hundreds

7 ' oflhousands of public employees who serve the educational needs of the more than 6.3 million students in grades kindergarten through 12 in California. The services of these employees are valued by their employers and the employees are trusted members of the education community. However, as with any professional community, employee misconduct does occur and the school district administrative staff must be able to investigate such misconduct and to obtain resolution in a timely manner. Given that school district employees are entrusted with the care of California's students, prompt resolution is especially critical. As part of CSBA, the Education Legal Alliance (the "Alliance") helps to ensure that local school boards retain the authority to fully exercise the responsibilities vested in them by Jaw to make appropriate policy and fiscal decisions for their local educational agencies. The Alliance represents its members, over 800 of the state's 1,000 school districts and county offices of education, by addressing legal issues of statewide concern to school districts. The Alliance's activities include joining in litigation where the interests of public education are at stake. The California Public Employers Labor Relations Association (CalPELRA) is a professional, nonprofit association of public sector management representatives responsible for carrying out the labor relations/human resources programs for public agencies. CalPELRA's nearly 700 members include labor relations and human resources professionals who work for approximately 400 California governmental agencies, including state agencies, cities, counties, school districts, state colleges and universities, courts, and special districts. CalPELRA has a significant interest in the outcome of this case. The members of Ca!PELRA are responsible for conducting appropriate investigations into employee misconduct. 2

8 This case presents an issue of great importance to the many local public agencies in California because it, in essence, overturns the misconduct investigation and disciplinary procedures the entities have developed and relied upon for over twenty years, without hann, since this Court's ruling in Lybarger v. City of Lo s Angeles (1985) 40 Cal.3d 822. The appellate court's opinion imperils each local public agency's ability to timely investigate public servant misconduct. A local agency must effectively and timely investigate suspected employee misconduct to minimize harm to the public. The decision by the Sixth Appellate District Court interjects unwarranted barriers to, and delay of the local agency disciplinary process. SUMMARY OF ARGUMENT The Sixth District Court of Appeal's ruling in Spielbauer v. Co unty of Santa Clara (2007) 146 Cai.App.4 "' 914 is an extraordinary and unwarranted departure from the disciplinary procedures adopted by public entities in accordance with the United States Supreme Court's ruling in Garrity v. State of New Jersey (1967) 385 U.S. 493 and the California Supreme Court's ruling in Lybarger v. City of Lo s Angeles {1985) 40 Cal.3d 822. Based upon these rulings, public entities routinely give a Garrity/Lybarger admonition to a public employee prior to eliciting testimony in an administrative employment investigation, which, by operation of law, creates "use immunity" in any subsequent criminal proceeding. Under Spielbauer, this admonishment by the public employer is deemed to be an unlawful violation of the employee's Constitutional right against self-incrimination, instead requiring the employer to first seek grants of fonnal immunity from the appropriate local, state and federal prosecuting agencies. This would impose a significant administrative and 3

9 financial burden on all public agencies involved in the process, frustrating the employer's ability to timely investigate and discipline misconduct. ARGUMENT A. A PERMANENT PUBLIC EMPLOYEE MAY BE DISMISSED FOR REFUSAL TO ANSWER QUESTIONS IN CONNECTION WITH AN INVESTIGATION IF HE HAS BEEN GIVEN A GARRITY/LYBARGER ADMONISHMENT, DULY ADVISING HIM OF HIS OPTIONS AND THE CONSEQUENCES OF HIS CHOICES Although resolved in Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, this court is again being asked to determine the parameters of an employee's right against self-incrimination, balanced against a public employer's legitimate interests in hiring and maintaining a workforce that adheres to a high performance standard when performing on behalf of the government. The people of the State of California and the legislature have clearly established a public policy against retaining employees who fail to meet high standards of conduct. Cal. Canst. Art. VII, Sec. I; Byrne v. State Personnel Board(l960) 179 Cal.App.2d 376,382 ("The people of California adopted the civil service constitutional amendment in order to secure a high standard of public service and a high standard of conduct in public service.) See also, Gov Code Sees et seq.; Gov. Code Sec (1); Ed. Code Sees ( a); 45113, 45261, 89535( c). This long-standing public policy is premised on accountability to the general public. It has been stated that a governmental employer has a fiduciary obligation to preserve the integrity of the public service, and therefore is required to remove from service an employee who ibils to meet 4

10 these standards. Mar tinez v. County o[tul ar e (! 987) 190 Cal.App.3d 1430, During the 20 years between the Lybar ger and Spiel bauer rulings, public agencies had developed policies and procedures to investigate employee misconduct. Under Lybar ger, these compelled statements are protected by use immunities and therefore criminal prosecutors may not, and as a matter of Practice do not, seek statements made under Gar r ity/lybar ger admonishments for use in subsequent criminal proceedings. Lybar ger v. City of Los Angel es (I985) 40 Cal.3d 822 Although Lybar ger was a case relating to peace officers, many local public agencies give the Gar r ity/lybar ger admonition to all employees. In a section of the Lybar ger opinion tilled "Duty to Cooperate" it is slated:!d. at 827. Appellant argues thai section 3304, subdivision (a), insulated him from administrative discipline imposed solely by reason of his exercise of the right to remain silent. But appellant had neither a constitutional nor a statutory right to remain silent free of administr ative sanction. As a matter of constitutional law, it is well established thai a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding. (See Lefkowitz v. Turl ey (1973) 4 I 4 U.S. 70, 77-79, 94 S.Ct. 3I6, ,38 L.Ed.2d 274; Garr ity v. State of New Jer sey (I967) 385 U.S. 493, 500, 87 S.Ct. 6I6, 620, I 7 L.Ed.2d 562.) Use immunity for compejlcd statements was recognized by the Sixth Appellate District in Peopl e v. Gwil lim (1990) 223 Cai.App.3d "CalifomiCI courts have adopted usc and derivative usc immunity to protect the constitutional rights of declarants in various settings. (See, e.g., Ramona R. v. Superior Court (I 985) 37 Cal.3d 802, 210 Cai.Rplr. 204, 693 P.2d 789 [statements made by minor to probation officer or during fitness hearing 5

11 may not be introduced as substantive evidence against minor at trial]; People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024 [except for purposes of impeachment or rebuttal, testimony at probation violation hearing is inadmissible in subsequent trial on criminal charges arising out of alleged violation of probation conditions]; In re Jes s ica B. (1989) 207 Cal.App.3d 504, 254 Cal.Rptr. 883 [parent's admissions during dependency proceedings or court-ordered therapy inadmissible in criminal trial for child abuse].)"!d. at1267, fu. 5. The crux of Spielbauer is that absent legislative authority, a public employer acts unlawfully when it gives a Garrity/Lybar ger admonition "immunizing" statements of its employees, and therefore while the assertion of an employee's Fifth Amendment rights "may pose impediments to disciplinary investigations," the individual employee's Constitutional rights are paramount to the local governmental entity and the public it serves. The Spiel bauer court misconstrued a line of United States Supreme Court cases dealing with waiver of immunity, as also affirmatively requiring the employer to offer immunity in a specific way. See Garr ity v. New Jer sey (1967) 385 U.S. 493; Spevack v. Klein (1967) 385 U.S. 511; Gardener v. Broker ick (1968) 392 U.S. 273; Unifor med Sanitation Men As s oc. v. Comm 'r of Sanitation (1968) 392 U.S. 280; Lefkowitz v. Turley (1972) 414 U.S. 70. Rather these cases hold that the employer cannot act so as to limit or cause the individual to waive the right against selfincrimination that he may need to later assert in a criminal proceeding. The Spielbauer decision ignores that these prophylactic rules developed based upon logic and necessity to protect a person's constitutional privilege against self-incrimination, given the various forums in which a person's current acts may have later criminal import. This included the employment forum. These earlier United States Supreme 6

12 Court cases balanced the competing rights and duties of the parties, finding that an employer may not require a waiver of an employee's Fifth Amendment rights, but may nevertheless require him to cooperate in an investigation. Garrity was a criminal case with appejlants suing because their involuntary statements were used against them in a subsequent criminal proceeding. AppeHants were police officers who were admonished that if they invoked the Fifth Amendment, they would be subject to removal from office under a New Jersey statute. The Garrity court held that when a police officer had been compelled to testify by the threat that otherwise he would be removed frorp. office, the testimony that he gave could not be used against him in a subsequent prosecution. The court noted that the officer had not signed a waiver of immunity and no immunity statute was applicable in the circumstances. Thus in addressing the gap, the court held that involuntary statements obtained under threat of job loss could not be used in subsequent criminal proceedings of statements. Next, in Spevack, appellant, an attorney, asserted his Fifth Amendment rights, refusing to comply with a subpoena duces tecum to produce financial records and to testify at the judicial inquiry. He was disbarred, with the underlying court holding that the constitutional privilege against self-incrimination was riot available to him. Articulating his recognition of the effect of the Fifth Amendment in the employment context, Justice Fortas, writing a concurring opinion in Spevack stated: "But I would distinguish between a lawyer's right to remain silent and that of a public employee who is asked questions specifically, directly, and narrowly relating to the performance of his official duties as distinguished from his bejiefs or other matters that are not within the scope of the specific duties which he undertook faithfully to pcrfonn as part of his employment by the Slate. This Court has never hdd, lor example, that a policeman may not be discharged for 7

13 refusal in disciplinary proceedings to testify as to his conduct as a police officer. It is quite a different matter if the State seeks to use the testimony given under this lash in a subsequent criminal proceeding. Garrity v. State of New Jersey 385 U.S. 493 But a lawyer is not an employee of the State. He does not have the responsibility of an employee to account to the State for his actions because he does not perform them as agent of the State. His responsibility to the State is to obey its laws and the rules of conduct that it has generally laid down as part of its licensing procedures. The special responsibilities that he assumes as licensee of the State and officer of the court do not carry with them a diminution, however limited, of his Fifth Amendment rights. Accordingly, I agree that Spevack could not be disbarred for asserting his privilege against self-incrimination." Spevack, supra, at Thus, as is evident in these 1967 cases, the Justices of the United States Supreme Court are contemplating the impact of these rulings on the public sector workplace. Decided one year later, Gardener was a proceeding to review the discharge of a city policeman for his refusal to waive immunity. Justice Fortas, now writing for the majority, defined the statement of the case as: '"... whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal." 1 ustice Fortas expanded his views from Spevack, writing that the Spevack attorney, although licensed by the State, is not an employee, but conversely, the police officer in Gardener owes his entire loyalty to the state. "If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the usc of his answers or the fhiits thereof in a criminal prosecution of himself Garrity v. Stale ofnew Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal." ld. at278. 8

14 In Ga rdener the concern was that the police officer was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to relinquish his constitutional rights.!d. In other words, the Constitutional right at issue was not the right to be free from having one's statement compelled but rather the right against having that compelled statement used criminally, resulting in involuntary selfincrimination. In addressing the propriety of compelling employee accountability, the court said: "It is clear that petitioner's testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the!alter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity."!d. at 279. In Sa nitation Men, an action by city sanitation department employees who were discharged for refusing to sign similar waivers, Justice Fortas again writing for the court said: "As we stated in Gardner v. Broderick, supra, if New York had demanded that petitioners answer questions specifically, directly, and narrowly relating to the performance of their official duties on pain of dismissal from public employment without requiring relinquishment of the benefits of the constitutional privilege, and if they had refused to do so, this case would be entirely different. In such a case, the employee's right to immunity as a result of his compelled testimony would not be at stake... At the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights." Uniformed Sa nitation Men Assoc. v. Co m miss 'r of Sa nitation ( 1968) 392 U.S

15 Pursuant to this line of cases, a public employer has the lawful right to inquire into an employee's misconduct and if they do, the Fifth Amendment operates to protect the individual from the use of these compelled statements in later criminal proceedings. The language and context of these early United States Supreme Court cases contemplate that the immunity conferred by the Fifth Amendment is self-executing, and both federal and state cases have interpreted this accordingly. See Sher v. U.S Department of Veteran's Affairs (I '1 Cir. 2007) 488 F.3d 489, ; Hester v. City o[mitledgevil/e (lith Cir. 1985) 777 F.2d 1492, 1496; Knebel v. City of Biloxi and Civil Service Commis sion (Miss. Sup. Ct. 1984) 453 So.2d 1037, lf the employee then fails to account for his performance, he is subject to dismissal. B. THE SP/ELBA UER IMMUNITY PROTOCOL IS AN EXTRAORDINARY AND UNWARRANTED DEPARTURE FROM STANDARD WORKPLACE INVESTIGATION PROCEDURES CREATING A SIGNIFICANT FINANCIAL AND ADMINISTRATIVE BURDEN ON PUBLIC ENTITIES AND A BARRIER TO THE EMPLOYER SECURING AN ACCOUNTING OF THE EMPLOYEE'S PERFORMANCE OF HIS PUBLIC TRUST Pre-Spiel bauer public entities operated under the web-established controlling authority from the United States Supreme Court and the California Supreme Court that a compelled statement was shielded by "use immunity" in any subsequent criminal proceeding. Under Spiel bauer invoking of the Fifth Amendment would operate to delay the investigation and therefore, clearly has an adverse impact on employers. Although presumably an unintended consequence, if the pubjic employer is barred from securing the employee's statements, adverse consequences to the employee may also result. 10

16 I. Spie/bauer is a Barrier to the Employer Securing an Accounting of the Employee's Performance Prc-Spielbauer, an employee could cooperate in a disciplinary investigation, and in fact ordinarily would be ordered to cooperate or face charges of insubordination, knowing that his statements would not be used against him. Post-Spielbauer, with the removal of such protections, an employee may feel Constrained from cooperating in the administrative forum, with the potential for criminal prosecution looming. Non-altruistic employees, knowing that the local public agency must secure the formal immunity agreement of the local District Attorney, the State Attorney General, the U.S. Attorney, and arguably approval of thc grant of immunity by one or more courts of competent jurisdiction before it can take the employee's statement, can compel delay in the administrative tract, pending resolution of the criminal issues or the passage of the statute of limitations time period for which cdminal charges could be filed. 1 The local public agency therefore has the unsatisfactory choice of proceeding without the employee's input, or delaying the investigation for an unknown period of time until immunity is sought from and granted by the outside prosecutorial agencies. A significant reason for seeking the employee's testimony is to identity facts in mitigation of the disciplinary penalty. Often the employee is the only source of this mitgation evidence. Without evidence in mitigation, the employer is left to act based upon uncontroverted facts and termination may result. This termination would not be a penalty for insubordination for invoking his Fifth Amendment rights, an issue of focus in Spiel bauer. This is problematic because ultimately criminal charges may 1 In Spielbauer, the 61h Appe 1ate Districf Court acknowledges that there is no provision in law for a grant of immunity as posited in the case. Spiel bauer v. Co unty of Sa nta Clara (2007) 53 Cal.Rptr. 357,383, fn. 12. II

17 never be filed, and yet at the moment in time when the employee chose caution, invoking Spiel bauer, he preserved a Constitutional right he never actually needed, thereby losing that which he did need, his job. 2. Spie/bauer Creates Administrative Burdens On Public Agencies Spiel bauer contemplates that an employing public entity will seek formal immunity from the prosecuting agencies prior to taking an employee's statement. There is, however, no authority for a prosecutor to grant-immunity for statements made in the employment context. Furthermore, there is no established or agreed upon procedure in which to seek immunity. The workload of the involved public agencies will increase with the necessity of these employment reviews both in the development of procedures and thereafter in the added workload. After the granting of use immunity, the government may only prosecute the witness using evidence obtained independent from the witness's immunized testimony and it would be their burden of proof to establish the independence of the evidence, which again is an additional administrative burden on staff and resources. Yet even if the employer can overcome these hurdles, it is likely that the employer has limited information, absent an interview with the employee, to articulate a basis for immunity. This leaves the prosecutor with limited information for use in evaluating the request for a grant of immunity, requiring further investigation by criminal law enforcement agencies or the District Attorney investigators, at a further cost to taxpayers. Under these circun1stances, the employer is in a Catch-22 situation in that the employee has invoked Spielbauer and will not give his statement and the prosecutor \Viii not consider immunity absent further investigation. A prosecutor could determine not to expend office resources ; ,

18 on further investigations, meaning the employee could not be compelled to speak until the running of any applicable statutes of limitation periods. 3. Spielbauer Creates Financial Burdens On Public Agencies In the ordinary course of business, employees are placed on paid administrative leave pending resolution of discipline. Government Code section addresses the issue of paid or unpaid administrative leave in connection with the investigation of serious misconduct. Local public agencies have policies in effect that closely conform to, or in some instances are more generous than, these government code provisions that address state employment. Any barrier to resolution of the discipline may lengthen the administrative leave period, resulting in an increased financial burden to the public entity. A public entity is always cognizant of its fiscal responsibilities to the taxpayers. Funding fof the administrative cost.s under Spiel bauer will be borne solely by taxpayers. In given circumstances, one (I) public entity may be funding all sides. For example, if a matter involves County employment, the County would be paying the employee's administrative leave costs, and the salaries and other attendant costs of seeking immunity incurred by the appointing authority and the District Attorney and their respective staffs. 4. Spielbauer Creates Additional Adverse Consequences Due To The Enforced Delay In Resolving Employment Matters There are additional adverse consequences to the government attributable to the enforced delay in resolving employment matters. A public entity is always accountable to the general public for its actions. Various "sunshine laws" or "lransparcncy laws" exist e.s 13, -:::. --:..

19 mechanisms to assure such accountability. If the matter has garnered publicity, the general public and particularly newspapers and other media outlets seek explanations. For example, a public entity is legitimately concerned with the notoriety of an offense and its impact on the entity's reputation. The expectation is that the employer will timely and adequately address misconduct to minimize harm to the public service. Generally, however, personnel records are confidential under California Government Code 6250, Under Spielbauer the seeking of immunity will cause significant delay in resolving discipline issues, and due to confidentiality laws, the entity is precluded from explaining its failure to act. This can only serve to erode the public's trust and confidence. Regarding peace officers, under Government Code 3304(d), no punitive action shall be undertaken if the investigation of the allegation is not completed within one year of the public agency's knowledge of it. Absent sufficient action by the prosecutor that would operate to toll this provision, any delay could operate as a barrier to the public entity later disciplining an officer. 5. Spielbauer Creates an Adverse Impact on Workplace Harassment and Discrimination Proceedings "The implications extend beyond the disciplinary context. Aside from its ordinary duty to investigate employee misconduct in order to assure retention of a competent workforce, in matters involving workplace. harassment or discrimination, public employers have a statutory duty to investigate and may be subjected to civil liability for failure to do so. Govt. Code 12940(k), ; Title VII of the Federal Civil Rights Act of!964, 42 U.S.C. 2000e et seq. If a complaint is filed with the Equal Employment Opportunity Commission and/or the Department of Fair Housing and Employment, 14

20 assertion of the Fifth Amendment is going to raise additional issues regarding the employer's ability to address the allegations. This may also involve issues regarding the tolling of relevant statutory time periods. During this period, in keeping with its duty to provide an environment free from harassment and discrimination, the public employer most likely must either keep the employee on paid administrative leave, or terminate him, to avoid additional harassment or discrimination claims, and/or new claims of retaliation. 6. Spielbauer Creates an Adverse Impact on the Resolution of Civil Litigation Furthermore, under California Government Code 825, a public entity must defend and indemnify an employee for any claim or action against him for an injury arising out of an act or omission occurring within the scope of his or her employment if the request is made in writing not less than I 0 days before the day of trial, and requires the employee to "reasonably cooperate in good faith." Tims, the employee has a duty to cooperate in their own defense, the defense of coworkers, and the defense of their employing entity if they are to seek and be granted legal representation, with or without a resetvation of rights, and potentially indemnity for an adverse judgment. Ordinarily, when an employee fails to cooperate in litigation, representation can be withheld or withdrawn. If the public entity is involved in civil litigation and an employee has invoked Spielbauer, conceptually it is questionable whether the employer can require the employee to cooperate. If the public entity does determine that they can refuse to indemnify and defend the employee, risk would transfer to the employee who faces the loss of significant assets should a 15

21 judgment be entered against them) pending resolution in the criminal forum. CONCLUSION For the reasons described herein, Amici Curiae submit that the decision of the Sixth District Court of Appeal should be reversed. DATE: August 28, 2007 Respectfully submitted, KATHLEEN BALES-LANGE Tulare County Counsel v D ANNE H. PETERSON Deputy County Counsel V Attorneys for Amici Curiae California League Of Cities California State Association Of Counties California School Boards Association and Its Education Legal Alliance California Public Employers Labor Relations Association 16

22 CERTIFICATE OF COMPLIANCE For Case Number Pursuant to the Supreme Court of the State of California, Appellate Rule 8.204(c), as amended January I, 2007, I certify that all text in the attached Brief of Amicus Curiae is proportionally spaced, uses a 13 point Times New Roman font and contains 4,331 words. DATE: August 28, 2007 Respectfully submitted, KATHLEEN BALES-LANGE Tulare County Counsel :1) DEANNE H. PETERSON Deputy County Counsel V r Attorneys for Amici Curiae California League Of Cities California State Association Of Counties California School Boards Association and Its Education Legal Alliance California Public Employers Labor Relations Association 17

23 State of California ) County of Los Angeles ) ) Proof of Service by:.f US Postal Service Federal Express I, Maurice L. Harrington, declare that I am not a party to the action, am over 18 years of age and my business address is: 354 South Spring St., Suite 610, Los Angeles, California upon: On 08/29/07 declarant served the within: Brief of Amici Curiae I Copies FedEx.f USPS Douglas B. Allen, Esq. BURNETT BURNETT & ALLEN 333 West San Carlos St., 8th Floor San Jose, CA I Copies FedEx.f USPS Marcy L. Berkman Santa Clara County Counsel 70 w. Hedding St., EWing 9FL San Jose, CA Attorney for Plantiff-Appellant Attorney for Defendant-Respondent 1 Copies FedEx.f USPS Han. Conrad L. Rushing California Court of Appeal Sixth Appellate District 333 W. Santa Clara Street Suite 1060 San Jose, CA Copies FedEx.f USPS Han. James P. Kleinberg Santa Clara County Superior Court 191 North First Street Suite 1200 San Jose, CA95113 the address(es) designated by said attorney(s) for that purpose by depositing the number of copies indicated above, of same, enclosed in a postpaid properly addressed wrapper in a Post Office Mail Depository, under the exclusive custody and care of the United States Postal Service, within the State of California, or properly addressed wrapper in an Federal Express Official Depository, under the exclusive custody and care of Federal Express, within the State of California I further declare that this same day the original and 13 copies has/have been.f hand delivered for filing OR the origin:tl and copies has/have been filed by third party commercial carrier for next b11siness day delivery to: Office of the Clerk Supreme Court of California 300 South Spring Street Los Angeles, CA I declare under penalty of perjury that Signature: _71(_ { }t'_"'::-=fr----